Justices Bar State Dues Pact for Home Aides, Stop Short of Broad Ruling on Public Unions

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By Lawrence E. Dubé 
Michael Bologna contributed to this report.

June 30 — In a 5-4 ruling, the U.S. Supreme Court June 30 held that personal care assistants paid by the state of Illinois but mostly supervised by the home care recipients they serve are not “full-fledged” public employees who can be compelled to pay union dues or fees to a union recognized by the state as their bargaining agent.

The ruling is a major blow to unions like the Service Employees International Union, which represents about 400,000 such aides across the U.S. Just as importantly, the five justices in the majority revealed a level of skepticism about the constitutionality of union shop or fair share agreements in any public employment setting that will concern not only SEIU but many other public employee unions.

The court declined a request by Pamela Harris and other care assistants to overrule a 37-year old precedent that generally permits “fair share” agreements for public employees, but the court's majority called the earlier ruling “questionable” and declined to extend it to the Illinois care aides, noting that the union recognized by the state had little authority to negotiate benefits for the care assistants.

Writing for the majority, Justice Samuel A. Alito said: “If we accepted Illinois' argument, we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Chief Justice John G. Roberts and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas joined in the majority opinion.

Justice Elena Kagan, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor, dissented.

Divided Reactions on Long-Awaited Ruling

Comment was quick on a Supreme Court decision that was argued before the court more than five months ago.

National Right to Work Legal Defense Foundation attorneys represented Harris before the Supreme Court, and the group's President Mark Mix said in a statement: “We applaud these homecare providers' effort to convince the Supreme Court to strike down this constitutionally-dubious scheme, thus freeing thousands of homecare providers from unwanted union control.”

“This scheme, which forced parents and other relatives taking care of persons with disabilities into union political association was a slap in the face of fundamental American principles we hold dear,” Mix said.

Harris said in the same statement that “families in Illinois can relax knowing their homes are safe from being a union workplace and there will be no third party intruding into the care we provide our disabled sons and daughters.”

But Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor, and Pensions Committee, said: “The workers and people that they care for affected by this ruling have already seen vast improvements because of their association with a union. A contract gives workers better wages and working conditions, provides a stable workforce to provide quality care to our families, friends, and neighbors, and is good for our country's economy.”

The court declined a request by eight care assistants to overrule a 37-year old precedent that generally permits “fair share” agreements for public employees, but the majority called the earlier ruling “questionable” and declined to extend it to the Illinois care aides, noting that the union recognized by the state had little authority to negotiate benefits for the care assistants.

Sen. Lamar Alexander (Tenn.), ranking Republican on the Senate committee said the decision was “good news for our nation's families, who are now protected from a disturbing union scheme to turn private homes into unionized workplaces.” The ruling “keeps union hands out of the pockets of those providing care to their disabled family members,” he said.

The Obama administration also responded quickly to the ruling. White House Press Secretary Josh Earnest said in a statement: “For almost 40 years, the Supreme Court has held that the First Amendment allows state and local governments to require employees to pay a fair share of a union's expenses for representing that worker.”

“We are disappointed that the Supreme Court has carved out a group of workers—homecare workers who provide critical support to the elderly and people with disabilities in their own homes,” the press secretary said.

Secretary of Labor Thomas E. Perez also issued a statement reacting to the decision. Stating that home care workers perform heroic work for the disabled, he said: “By organizing together, these workers have improved both their own working conditions and the quality of the services they provide.”

“Today's Supreme Court decision will make it more difficult for home care workers to have a united voice and the support they need to best serve their clients,” Perez said. But he added: “We can and will continue to work in partnership with home care workers, consumers, employes, unions and states to ensure both good jobs and quality home care.”

AFL-CIO President Richard L. Trumka decried an “assault from anti-worker organizations” and said “the fate of workers cannot and will not be decided by one Supreme Court decision.”

Home Care Aides Covered by Union Agreement

The eight home health aides, or personal assistants, for Medicaid recipients argued that a 2009 executive order by then-Gov. Rod Blagojevich (D) and a collective bargaining agreement between the state and SEIU Healthcare Illinois and Indiana violated their First Amendment and 14th Amendment rights by forcing the workers to accept a union as their exclusive bargaining representative and to pay either union dues or a fair share fee to support the union's representation costs.

In 2010, the nonunion personal assistants sued Illinois Gov. Pat Quinn (D) and three unions, seeking relief from compulsory support of the unions. But a federal district court rejected their class claims that the fair share fees negotiated by the state violate the personal assistants' First Amendment rights and dismissed other claims as not ripe for review.

The U.S. Court of Appeals for the Seventh Circuit affirmed, ruling that the personal assistants are state employees, at least for collective bargaining purposes, and the state can compel them as employees to “financially support a single representative's exclusive collective bargaining representation” (656 F.3d 692, 191 LRRM 2545 (7th Cir. 2011).

The personal assistants filed a petition for Supreme Court review. The high court called for the views of the solicitor general, who advised against review. However the court granted review and heard oral argument in January.

Court Describes Features, Limits of State Control

“This case,” Alito wrote for the majority, “presents the question whether the First Amendment permits a State to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support.” The majority found the U.S. Constitution did not permit the Illinois fair share agreement, and reversed the Seventh Circuit.

Alito said Harris and other care assistants were employed under the state's Medicaid-supported Rehabilitation Program, which allows an aid recipient to hire a “personal assistant.” Many of the assistants are relatives of the aid recipients, and many provide help in the recipient's home.

An Illinois statute, 89 Ill. Admin. Code § 676.30(p), defines a “personal assistant” in the program as an individual “employed by the customer.” Alito noted that another provision, Section 676.30(b), mandates that the customer is “responsible for controlling all aspects of the employment relationship,” including such functions as hiring, directing, disciplining, and discharging an assistant.

“While customers exercise predominant control over their employment relationship with personal assistants, the State, subsidized by the federal Medicaid program, pays the personal assistants' salaries,” Alito wrote. But he found that state government's role in the relationship is “comparatively small,” with the state setting some qualifications and suggesting some duties for care assistants.

In the 1980s, Alito wrote, the Illinois Labor Relations Board found that the state could not be considered the employer of the care assistants for purposes of its state labor relations statute.

However, he said, Illinois “circumvented this decision” by issuing an executive order, later codified by the state legislature, calling for state recognition of a union and finding that the state needed “feedback from the personal care assistants” to ensure home care services were efficiently and effectively delivered.

SEIU Healthcare Illinois and Indiana won an election to represent the care assistants, and later entered a “fair share” agreement requiring any bargaining unit employees who were not members of the union to pay a fee. The union receives more than $3.6 million annually from Illinois care assistants, Alito said.

Majority Questions Abood Precedent

The majority opinion said the Seventh Circuit upheld the constitutionality of the Illinois laws, but did so by relying on Abood v. Detroit Board of Education, 431 U.S. 209, 95 LRRM 2411 (1977), which held that a public employer may have an interest in labor peace that justifies dealing with a collective bargaining representative rather than individuals.

However, in Knox v. Service Employees International Union Local 1000, 132 S. Ct. 2277, 193 LRRM 2641 (2012), the court called Abood “something of an anomaly.”

Alito wrote that “the State of Illinois now asks us to sanction what amounts to a very significant expansion of Abood—so that it applies, not just to full-fledged public employees, but also to others who are deemed to be public employees solely for the purpose of unionization and the collection of an agency fee.”

Alito said the Abood court relied on Railway Employees' Department v. Hanson, 351 U.S. 225, 38 LRRM 2099 (1956), and International Association of Machinists v. Street, 367 U.S. 740, 48 LRRM 2345 (1961), in which the court upheld union shop agreements in the private sector. But he found that Abood “failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector.”

In the public sector, he wrote, core issues such as wages, pensions and benefits are not only matters of interest to employees; they are also “important political issues.”

Commenting that “Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends,” Alito said the Supreme Court has “struggled repeatedly” with the issue.

The “unusual status” of personal assistants under the Illinois program raised important questions about applying Abood to the fair share arrangement with SEIU, the court said.

Noting that the home care aides were ineligible for a “host of benefits” extended to other state workers, Alito said “Illinois deems personal assistants to be state employees for one purpose only, collective bargaining, but the scope of bargaining that may be conducted on their behalf is sharply limited.”

Illinois Case Outside Abood ‘Boundaries.'

The majority opinion said “Abood's rationale, whatever its strengths and weaknesses, is based on the assumption that the union possesses the full scope of powers and duties generally available under American labor law. Under the Illinois scheme now before us, however, the union's powers and duties are sharply circumscribed, and as a result, even the best argument for the ‘extraordinary power' that Abood allows a union to wield … is a poor fit.”

Citing the “questionable foundations” of Abood and calling the Illinois care assistants “quite different from full-fledged public employees,” the court said it would not “extend Abood to the new situation now before us.”

Abood had “clear boundaries” that limited its application to public employees, Alito said. Applying the precedent to “partial public employees, quasi-public employees, or simply private employees” would create practical problems and would leave the high court uncertain about “where to draw the line.”

Court Limits Pacts to ‘Full-Fledged' State Employees

Holding that Abood should be confined to “full-fledged state employees,” Alito found the fair share agreement could not otherwise be defended against the constitutional challenge. He observed that the disputed fair-share agreement was defended as providing improved benefits to the care assistants, and the union representing the Illinois aides argued it had been an effective advocate.

Even assuming those assessments were accurate, Alito found that an agency fee or fair share agreement could not be upheld unless its proponents could show the benefits would have been impossible to attain by a union relying exclusively on voluntary dues payments of the care assistants who chose to join the union.

“For all these reasons,” Alito wrote, “we refuse to extend Abood in the manner that Illinois seeks.”

Reversing the Seventh Circuit, and remanding the case for “further proceedings consistent with this opinion,” the majority found “[t]he First Amendment prohibits the collection of an agency fee from personal assistants in the Rehabilitation Program who do not want to join or support the union.”

Dissent Calls Precedent Appropriate, on Point

In her dissent, Kagan said Abood “answers the question presented in this case.”

Abood,” the justice wrote, “held that a government entity may, consistently with the First Amendment, require public employees to pay a fair share of the cost that a union incurs negotiating on their behalf for better terms of employment. That is exactly what Illinois did in entering into collective bargaining agreements with” the SEIU that “included fair-share provisions.”

Kagan said there was “cause for satisfaction” that the court did not overrule Abood, although she said the majority took “potshots” at the precedent.

Some of the majority's analysis of the Illinois Rehabilitation Program appears to rest on “the simple presence of another employer,” the home care clients or customers, Kagan said. She argued “this Court's cases provide no warrant for holding that joint public employees are not real ones.”

“If Illinois had structured the program, as it could have, to centralize every aspect of the employment relationship, no question could possibly have arisen about Abood's application,” Kagan wrote.

“Nothing should change,” she said, “because the State chose to respect the dignity and independence of program beneficiaries by allowing them to select and discharge, as well as supervise day-to-day, their own caregivers.”

Kagan Sees Abood Intact, Misapplied

“For many decades, Americans have debated the pros and cons of right-to-work laws and fair-share requirements,” the dissent observed. “The petitioners in this case asked this Court to end that discussion for the entire public sector, by overruling Abood and thus imposing a right-to-work regime for all government employees.”

“The good news out of this case,” Kagan said “is clear: The majority declined that radical request. The Court did not, as the petitioners wanted, deprive every state and local government, in the management of their employees and programs, of the tool that many have thought necessary and appropriate to make collective bargaining work.”

“The bad news,” she wrote, “is just as simple: The majority robbed Illinois of that choice in administering its in-home care program.”

Arguing the majority misapplied a precedent that struck a stable balance for 40 years between employee rights and the interests of government employers, Kagan concluded “[t]he balance Abood struck … should have defeated the petitioners' demand to invalidate Illinois's fair-share agreement.”

Impact on Workers, Aid Recipients Alleged

Several groups commented that the high court's decision will impact care workers across the country and many of the aid recipients who depend on them.

Richard Fiesta, executive director of the Alliance for Retired Americans said in a statement: “Today's decision hurts millions of low-wage workers and the people they serve, often the most frail and vulnerable in America.”

“All workers deserve a voice. Home health care workers' right to a voice on the job took a wrong-headed hit today, and that harms the home health care that seniors and people with disabilities receive,” Fiesta said. But he added “the Court upheld the right of other public employees to have a voice at work. That means they can continue to serve their communities and retire with dignity.”

Center for American Progress President Neera Tanden called the decision “the latest Roberts Court attack on important protections for hard-working Americans that sides with wealthy special interests in weakening worker protections.”

“This decision may be limited to those who the Supreme Court deems not fully public-sector workers,” Tanden warned, “but it is clear the Court is willing to wield the First Amendment as a weapon to hurt workers.”

National Education Association President Dennis Van Roekel issued a statement that “today the Supreme Court of the United States created a roadblock on that path to the American Dream. This ruling jeopardizes a proven method for raising the quality of home health care services—namely, allowing home health care workers to join together in a strong union that can bargain for increased wages, affordable health care and increased training.”

Jodi Sturgeon, president of the Paraprofessional Healthcare Institute, said in a statement that “the Court's decision limits the State's ability to determine how best to strengthen its Medicaid home and community-based services by building a sustainable qualified workforce.”

“Unfortunately,” Sturgeon said, “it is Illinois citizens who need long-term care, their families, and the underpaid workers who provide their care—who will bear the brunt of this decision.”

SEIU, State Plan to ‘Move Forward.'

Mary Kay Henry, international president of the SEIU, told reporters in a conference call that she is disappointed with the court’s ruling, but she said the union would not be deterred from its goal of advocating on behalf of the estimated 3 million home-health workers across the country. Henry conceded, however, that SEIU would have to develop a “new model” for representing home-health workers and acting as their collective bargaining agent.

“Despite today’s decision, we are ready to move forward,” Henry said. “We are prepared to work in partnership with Illinois and our consumer partners to make whatever changes are necessary to ensure that health care workers can continue to have a strong voice for good jobs and quality health care.”

Henry said SEIU believes the ruling is limited to the 26,000 home-health workers in Illinois, but the union is aware of potentially broader consequences. SEIU represents approximately 400,000 home-health aids nationally.

“We believe this case impacts Illinois,” she said. “It remains to be seen whether this case has any impact in the other states where we represent home care providers and those states are California, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Oregon and Washington.”

Henry said the court’s ruling would not affect the current collective bargaining relationship between SEIU and Illinois. She said SEIU would convene meetings with the administration of Gov. Pat Quinn (D) and Attorney General Lisa Madigan (D), aimed at developing strategies for maintaining the social and financial benefits being achieved through Illinois’ home health program. She described those discussions with the state as, “incredibly preliminary.”

Madigan, who spoke with reporters during the same conference call, said the ruling has done nothing to diminish Illinois’ enthusiasm for union representation of home-health workers. She said the relationship has improved care standards for the elderly and the disabled, and permitted the state to save millions of dollars

“This program has been extremely beneficial and extremely positive to the state, to the recipients of care, and the home health care workers. I have long described this as a win-win-win,” she said. “So we want to ensure that the program, going forward, continues to save the state as much money as possible.”

Madigan added, “we are going to be looking to make sure that this model can be retained and we will make changes as need be.”

William L. Messenger of the National Right to Work Legal Defense Foundation Inc. in Springfield, Va., argued the case for Harris. Paul M. Smith of Jenner & Block LLP in Washington argued for SEIU Healthcare Illinois and Indiana. Solicitor General Donald B. Verrilli argued for the U.S. as an amicus curiae.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion appears in Section E and is available at http://www.bloomberglaw.com/public/document/Harris_v_Quinn_No_11681_2014_BL_180311_US_June_30_2014_Court_Opin.

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